From Casetext: Smarter Legal Research

Rozanski v. Fitch

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 27, 1985
113 A.D.2d 1010 (N.Y. App. Div. 1985)

Opinion

September 27, 1985

Appeal from the Supreme Court, Wyoming County, Newman, J.

Present — Dillon, P.J., Doerr, Boomer, Green and Pine, JJ.


Order unanimously modified on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Although defendant appeals from two separate orders denying her motions to dismiss various causes of action asserted by plaintiffs, resolution of both appeals requires that we review only this order denying her motion under CPLR 3211 (a) (7); 3024 (a) to dismiss plaintiffs' amended complaint.

The amended complaint contains 18 causes of action. The first six sound in negligence; the seventh through twelfth allege defamation; and the thirteenth through eighteenth assert causes of action for intentional infliction of emotional distress. Since all causes of action are premised upon slanderous statements allegedly made by defendant concerning plaintiffs, this is essentially a claim for defamation.

A cause of action for defamation does not arise until there is publication, and allegations that prior to publication defendant negligently failed to determine the truth of her remarks and negligently failed to consider their adverse impact upon plaintiffs do not assert independent actionable wrongs (Weidman v Ketcham, 278 N.Y. 129). Causes of action first through sixth, therefore, must be dismissed.

Causes of action thirteenth through eighteenth must also be dismissed. It is doubtful that an action for intentional infliction of emotional distress should be entertained "where the conduct complained of falls within the ambit of other traditional tort liability" (Fischer v Maloney, 43 N.Y.2d 553, 558). Here, the causes of action for intentional infliction of emotional distress are redundant of the causes of action for defamation. If the latter fail, the former must also fail. If the words spoken by the defendant are true, the defendant had a right to say them, and that right cannot be subverted by allowing an action for intentional infliction of emotional distress (see, Murphy v American Home Prods. Corp., 58 N.Y.2d 293, 303). If the words spoken were false, they are slanderous per se, and damages for emotional distress are recoverable on the defamation causes of action (Garrison v Sun Print. Pub. Assn., 207 N.Y. 1; Dazzo v Meyers, 83 A.D.2d 14; Privitera v Town of Phelps, 79 A.D.2d 1).


Summaries of

Rozanski v. Fitch

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 27, 1985
113 A.D.2d 1010 (N.Y. App. Div. 1985)
Case details for

Rozanski v. Fitch

Case Details

Full title:FRANK ROZANSKI et al., Individually and as Parents and Natural Guardians…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 27, 1985

Citations

113 A.D.2d 1010 (N.Y. App. Div. 1985)

Citing Cases

Rozanski v. Fitch

The seventh and eleventh causes of action must be reinstated. Apparently because it is undisputed on the…

Zolondek v. Morgan

We decline to reach the issue of redundancy which was not raised before the Supreme Court and was first…